New laws to make voyeurism a crime in Hong Kong might not be able to punish unwanted photography in public areas such as bars and train stations, a legal scholar tasked to review the city’s sex offences said on Friday.

Publishing a 93-page report on Wednesday for a three-month public consultation, the Law Reform Commission’s Review of Sexual Offences Subcommittee proposed the creation of a new offence of voyeurism to criminalise acts of non-consensual observation or visual recording of another person done for a sexual purpose.

The forms of visual recording would include photography, video recording and the taking of digital images, according to the report.

Eric Cheung Tat-ming, a legal scholar on the subcommittee, said that whether non-consensual visual recording in public areas, such as bars or the MTR, could be included under the new offence would remain a question for discussion in the public consultation.

“One of the conditions raised in our proposal is that the victim should be entitled to a reasonable expectation of privacy in the circumstances of the incident,” Cheung said on a radio programme on Friday.

Non-consensual photography in public areas may offend or insult the targeted persons, but such behaviour may not have a sexual purpose

Eric Cheung, legal scholar

“If the incident took place on the MTR, which is a public area, the victim would have to collect sufficient evidence [to prove this expectation].”

Another example would be customers taking photos of a waitress’ breasts from a close distance in bars or restaurants.

“Non-consensual photography in public areas may offend or insult the targeted persons, but such behaviour may not have a sexual purpose,” Cheung added. “For example, people might take out their phones and videotape each other when they quarrel in a public space.”

The legal scholar agreed that these situations – brought up by lawmaker Elizabeth Quat, who phoned in to the programme – helped raise “a good question”.

“Whether the expectation of privacy should be limited to the external circumstances or expanded to cover certain body parts, we would love to hear more opinions from the public during the consultation,” Cheung said.

Under Hong Kong’s existing Crime Ordinance, those who secretly photograph or videotape another person with electronic or digital devices for sexual fulfilment are usually charged with obtaining access to a computer with a dishonest intent. The maximum penalty for the offence is five years in jail.

“Moreover, if a person peeps at another person in a private place for sexual fulfilment without using any technological devices, there is no existing offence to criminalise the act.”

The proposed new offence of voyeurism, Cheung said, was expected to close this legal loophole.

The report was the third issued by the subcommittee as part of its overall review of substantive sexual offences since it was formed 12 years ago. The two previous consultation papers were on rape and non-consensual sexual offences, and on sexual offences involving children and people with mental impairment.

The panel’s next step is to compile a final report with the three papers and then to review sentencing for the offences. It will put forth a formal proposal to the government at a later date.

In addition to criminalising voyeurism, the latest paper also proposed the creation of new offences for sexual exposure targeting a specific victim, as well as sexual activity on a dead person.

The subcommittee recommended that the city retain the offence of incest and invited the public to consider whether the offence should extend to adoptive parents.

A new offence of administering a substance for sexual purposes was suggested as a replacement for the existing offence of using drugs to obtain an unlawful sex act. And a new offence of committing an offence with intent to commit a sexual offence was proposed to replace the existing offence of burglary with intent to rape.